· “Sometime during the speeches, Trollip managed to give guests the slip and went home without most of them realising he was gone”; and

· “He looked like he was hurting.”

The text

The article, written by “Skinnerbek”, commented on the launch of the Algoa FM Big Walk for Cancer, where comedian Roland Gaspar performed – and inter alia poked fun at Trollip.

The arguments

Trollip denies that he gave guests “the slip” – he says he waited until all the formalities were over and even posed for several photos. He also spoke with the key-note speaker after the event, as well as with the caterer and with two of the event ambassadors and cancer survivors, Yolanda Bukani and Megan Hayward – all of whom can confirm his presence.

He also denies that he was “hurting” when he left, adding that he regards Gaspar as a good comedian, and stating that he laughed at his wit, making eye contact with him at the time.

He says he was among the first to arrive at the event, despite having had the flu, and personally supports the event.

Trollip says he does not mind being criticised or “shots” taken at him – as long as the facts are correct and the reportage fair. In this instance, he says, “The facts in this regard are polls apart from the story…”

Horner replies that the text was a column, which invited a particular style and irreverence. “A key part of its function is, in fact, much like Gaspar, to poke fun. It makes commentary on personalities/celebrities and can never be confused for anything other than what it is. It stirs by design,” he says.

The editor explains this is not to say that due care is abandoned. “What it does mean is that it records the observations of Skinnerbek (a full-time journalist at The Herald/Weekend Post) while attending various social functions. Readers are taken inside these events through her eyes and ears. It does not require forensic scrutiny. It is how she sees the world.”

‘He looked like he was hurting’: Horner says this statement was not stated as fact and was based on Skinnerbek’s observations of Trollip’s demeanour. He argues there is a fundamental difference between saying “he was hurting” and “he looked like he was hurting” – the latter is a subjective observation and offered readers nothing more than that.

‘Trollip managed to give guests the slip’: The editor says Skinnerbek was in attendance until all formalities were concluded. By her account Trollip departed during the last speech and was not seen by her again. She did not witness the conversations with the key-note speaker or the cancer survivors. However, adding to her observations was the fact that Trollip did not partake in a promotional video shot after the formalities.

‘… causing everyone in the room to laugh except Trollip’: Horner says the column did not suggest that Trollip had failed to laugh during Gaspar’s entire performance. Again, based on what she observed, she wrote that when Gaspar poked fun at the mayor – in other words, when he directed certain jokes at Trollip, everyone laughed except him.

Headline, sub-headline: The editor says these took their cue from the substance of the column, and was a reasonable interpretation of Skinnerbek’s account.

In conclusion: Horner says reasonable readers would understand the column for what it was and would not think less of Trollip. He was also a political leader and, as the courts have emphasised, those who fill public positions must not be too thin-skinned in reference to comments made upon them.

The editor cites the following statements by former Constitutional Court Judge Albie Sachs: “A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health.” [Laugh it Off Promotions CC v SA Breweries Constitutional Court par 109, judgment available at http://www.saflii.org/za/cases/ZACC/2005/7.pdf ]

In response, Trollip says the editor does not deny that the observations of the journalist were at odds with the facts. He argues that, while the importance of humour should indeed not be overlooked, it also should not be at the cost of reality and truth. “Irreverence is less effective when peppered with falsehoods,” he says.

The risk with mixing observations and fiction is that firstly it’s false reporting and secondly it often leads readers to accept fiction as fact. This mostly causes reputational damage and seems to be anything but in the public’s interest, he adds.

He cites as an example a “totally unfair and sickening” comment from a reader, based on Skinnerbek’s “dishonest” account, which was only made possible “due to the fictional nature of the column”.

Analysis

Section 7 of the Press Code, headlined Protected Comment, is relevant. It reads in full:

“The media shall be entitled to comment upon or criticise any actions or events of public interest. Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it expresses an honestly-held opinion; is without malice; is on a matter of public interest; has taken fair account of all material facts that are substantially true; and is presented in such manner that it appears clearly to be comment.”

The media clearly enjoy huge freedom, which is also guaranteed in South Africa’s Bill of Rights. However, like all freedoms, this one is also not limitless or absolute – there are certain conditions before one may voice an “extreme, unjust, unbalanced, exaggerated and prejudiced” view.

I am satisfied that Weekend Post met all (but one) of these conditions: Skinnerbek based her column on personal observations, which means that I have no reason to believe that her opinion was dishonest or malicious; the matter was also of public interest, and presented as comment. Even if her comments were “extreme, unjust, unbalanced, exaggerated and prejudiced”, it would still pass the test set by the Press Code.

The (only) outstanding issue is the condition that comment should take “fair account of all material facts that are substantially true” – if Skinnerbek stated a falsehood as fact, or voiced an opinion based on such a falsehood, it could have caused Trollip unnecessary reputational harm.

This means that I should merely try to determine whether the comments took “fair account of all material facts that are substantially true” – if they did, Weekend Post would be in the clear.

Turning now to the three statements in question:

‘… causing everyone in the room to laugh except Trollip’: This statement did not say that Trollip never laughed – it only stated that Trollip did not laugh when Gaspar was poking fun at him. There is no evidence from either side that Trollip was not laughing at jokes aimed at him – I therefore have no reason to tell Skinnerbek that her observation was wrong or, for that matter, that Trollip’s complaint is baseless. Let this hang in the air, for a moment.

‘Trollip managed to give guests the slip’: I have evidence, from pictures, that Trollip was present after the formalities had been concluded. If Skinnerbek was in attendance until all formalities were finalised, as she says, she must have made a mistake. The fact that the columnist did not witness the conversations mentioned by Trollip, does not mean that those did not take place; neither does the statement that Trollip’s absence from a promotional video shot after the formalities imply that he have guests “the slip”.

I also need to point out that this statement was not presented as comment, but as fact – which made it materially different from other statements.

‘He looked like he was hurting’: I accept Horner’s explanation that this statement was not stated as fact and was based on Skinnerbek’s observations of Trollip’s demeanour, and that the column merely stated he “looked like” he was hurting. Again, I cannot tell Skinnerbek that he did not look like he was hurting – I was not there. However, that statement was made in the context of the false statement that he had given the guests “the slip” – the intention was to say he had left early (which he did not) because he could have been hurting. On its own, when viewed in isolation, this statement cannot be in breach of the Press Code; however, when viewed within context (Trollip having left early), it certainly served to contribute to that false impression.

Reputational harm: Trollip’s argument that this reportage has caused him reputational harm is backed up by readers’ comments and does not need any elaboration. I simply cannot agree with the claim that reasonable readers would not think less of Trollip – I certainly did.

Section 3.3 of the Code reads in part, “The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances: (3.3.1) The facts reported are true or substantially true; or (3.3.2) The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially true…”

Again, causing damage to someone’s dignity and reputation is allowed – but on certain conditions. And again, the condition is that the information should be “true or substantially true”, and that the reportage should amount to “fair comment based on facts … that are true or substantially true” – which was not the case in this instance.

Yes, of course Trollip should not be too “thin-skinned” – but commenting on him should also not be based on falsehoods.

While I cannot find that Skinnerbek has breached the Press Code with the statement that Trollip did not laugh when the comedian was poking fun at him, or that he looked like he was hurting (when he left “early”), I also have to state that these two statements should be seen in context – the reason for Trollip leaving early ostensibly was because he did not find those jokes funny and, in fact, was seemingly hurt by them.

I need to take this context into account – but please note the careful phrasing in this regard under my finding as well as in the sanction.

But, while the column implicitly suggested that Trollip’s alleged early exit was because he was upset about the jokes aimed at him, the headline makes this link explicitly – Trollip made “a dash” for it because Gaspar’s jokes were “too much” for him.

If it is false that he left the event early (which it is), it is likewise unfair to explicitly link his “early exit” with his alleged unhappiness about those jokes.

I have said this often before and shall repeat it here: If a headline reasonably reflects a false or unfair text, the headline would likewise be untrue or unfair. Having argued that the headline was a reasonable reflection of the column, it follows that Horner has in fact admitted that the intention of the story was to link Trollip’s early exit to the claim that the jokes had “hurt” him.

Finding

By falsely stating as fact, both in the headline and in the column, that Trollip left the event early, Weekend Post was in breach of the following sections of the Press Code:

· 7.2.4: “The media shall be entitled to comment upon or criticise any actions or events of public interest. Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it expresses an honestly-held opinion; is without malice; is on a matter of public interest; has taken fair account of all material facts that are substantially true; and is presented in such manner that it appears clearly to be comment.” (The relevant sub-section is italicized); and

· 1.1: “The media shall take care to report news … accurately and fairly” (even though this was a column, the statement that Trollip left early was presented as fact and not as opinion, both in the text and in the headline).

The false statement that he left early, together with the explicit “reason” for this in the sub-headline, as well as the same implicit link in the story, have falsely created the impression of a humourless, even petulant, mayor. This could only have harmed his reputation unnecessarily, and therefore it is in breach of Section 3.3 as cited above.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).

The breaches of the Press Code as indicated above are all Tier 2 offences.

Sanction

Weekend Post is directed to apologise to Trollip for:

· falsely stating, as fact, that he had managed to give guests the slip and went home without most of them realising he was gone;

· creating the false impression that he had left the event early because the jokes aimed at him were “too much” for him (directly in the headline, and indirectly in the column); and

· causing him reputational damage in the process.

The newspaper is requested to publish the:

· apology at the top of the same page as the offending column, with a headline containing the words “apology” or “apologises”, and “Trollip”; and

· text online as well, if indeed it appeared on its website (at the top of that page), and to link the two texts.

The text should:

· start with the apology;

· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed;

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.